Hertfordshire County Council (19 009 098)

Category : Education > School transport

Decision : Not upheld

Decision date : 24 Feb 2021

The Ombudsman's final decision:

Summary: Mr A complained regarding the Council’s school transport charges for his disabled son. He said he could not afford them, and they were unfair. We find there is no fault by the Council regarding the contributions it has charged.

The complaint

  1. The complainant, whom I shall refer to as Mr A, complains that the Council is expecting him to pay £1553 per year for his son, X, a disabled young adult, to travel to college. Mr A says this is unfair because he cannot afford it and it discriminates against families with disabled children who live in rural areas.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. I have considered the relevant legislation and guidance. I invited Mr A and the Council to comment on my draft decision, and I considered their comments.

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What I found

Post 16 Transport Legislation and guidance

  1. Young people aged 16 and over with special educational needs and disabilities (SEND) do not automatically receive the free school transport younger children may be entitled to.
  2. The legislation regarding post 16 transport is set out in the Education Act 1996, sections 508F – 509AE (as inserted by the Education and Inspections Act 2006).
  3. The statutory guidance ‘Post-16 transport to education and training’ February 2014 provides guidance to Local Authorities about supplying transport for people over 16.

The Council’s policy

  1. Councils have a duty to publish a transport policy statement setting out the transport arrangements they consider it necessary to make to facilitate attendance at education or training and the financial help that may be available for this.
  2. The Council’s policy, Post-16 Transport to Education and Training Policy 2020/21, sets out the Council’s core transport offer and sustainable transport options, transport for young people from low income families and travel support for young people with learning difficulties, and/ or disabilities and with an Education Health and Care Plan (EHCP).

What happened

  1. Mr A applied in 2019 for home to school transport for his son. As X was aged 16 there was no statutory entitlement to free school transport. Councils have discretion to set whatever schemes they consider necessary to assist young people with SEND in getting to school.
  2. The Council confirmed X was eligible for its transport provision. His contribution towards the costs was £1553 based on the distance from home to school.
  3. In May 2019 Mr A appealed to the Council about the contribution. He asked the Council to waive the charge. He said he did not meet the low income criteria, but could not afford the payments. He felt the Council did not follow the SEND statutory code of practice because it should have named a post 16 placement for X by 31 March in the year of the transfer. But the Council had still not completed the EHCP review. As the Council had not held the statutory meeting, Mr A said he had not been made aware of the Council’s transport policy. Therefore, he could not consider this when deciding future pathways for X.
  4. Mr A also said that the Council’s transport policy discriminated against people who lived further away from schools. He said it was not their fault that the nearest suitable school placement was over 7 miles away. If the nearest suitable placement was less than three miles away, the charge would only be £883 a year. Mr A referred to the Department for Education’s “Post-16 transport and travel support to education and training statutory guidance for local authorities” issued in January 2019 (The Guidance). This states that:

“Local authorities must consider distance in determining eligibility for support with transport. Young people in rural areas should not be worse off financially because they may need to travel further to access education and training provision than their peers in urban areas.”

  1. Mr A said the Council’s policy discriminated against young people who were non independent travellers. The policy stated that young people who were disabled or had learning difficulties who were independent travellers may be able to apply for a disabled concessionary bus pass for free travel at all times in the Council’s area. But non independent travellers such as his son, had to pay a contribution.
  2. Finally, Mr A referred to The Guidance which says that Local Authorities have flexibility over what decisions it makes regarding Post 16 Transport, but they must have regard to:

“The needs of those for whom it would not be reasonably practicable to access education or training provision if no arrangements were made. Local authorities should satisfy themselves that they have made the transport arrangements or arrangements for financial support necessary to facilitate young people’s participation in education or training. In doing so, they should consider the needs of the most vulnerable or socially excluded. The needs of young people with special educational needs and disabilities should be specifically considered.”

  1. The Council’s SEN Transport team responded in June 2019. It said it had reviewed Mr A’s transport application. It noted Mr A said the EHCP annual review had not been completed. But it said that the SEN Transport Team was not involved with this process and advised him to contact X’s SEND Officer directly.
  2. The Council said in accordance with government guidance it requested a contribution to the transport costs of non independent travellers to the provision named in their EHCP. The Council said it could exercise its discretion when requesting a financial contribution and should ensure that any contribution was affordable for learners and parents. It said this discretion was reflected in the low income strand of its policy. Mr A had confirmed he would not qualify under this scheme, and so the Council said it would not reduce the charge of £1553.
  3. The Council noted Mr A’s said its scheme was discriminatory, but it considered its policy was fair and consistent. It said the charges were authorised and sanctioned by the manager of Admissions and Transport and represented 20% of the total cost of transport. the Council covered the remaining 80% of the total cost.
  4. Regarding Mr A’s point that it discriminated against non independent travellers, the Council said a young person with an EHCP who was an independent traveller would not be entitled to transport under its transport policy. However, they may be entitled under other schemes. The Council explained concessionary bus passes and saver cards were provided by different Council departments or by national government schemes. Therefore, these schemes were outside the SEN Transport Team’s remit. The Council said Mr A could pay in instalments.
  5. Mr A complained to the Council about the delay in completing X’s annual review. He asked the Council for a meeting to complete the review within 2 weeks.
  6. Mr A’s representative SENTAS, an advice and advocacy organisation, complained further on his behalf. It said:
    • The Guidance said Councils should make parents aware of their policies on Post 16 Transport during EHC Plan discussions. But the Council had not done this and had not replied to the complaint. It said the Council should have addressed this instead of saying Mr A must complain to another team.
    • The Council’s had a low income policy but that did not mean it had addressed the issue of affordability on an individual basis for Mr A.
    • The Council had not addressed Mr A’s point regarding the charges being unfair to those with SEND living further away from their nearest suitable college than other young people without SEND. The Council had also not explained the reason for the different charges for different mileage zones and should give full details for transparency.
    • The Council replied to Mr A’s point that its policy discriminated against non-independent travellers by saying other travel assistance schemes were outside SEN transport team’s remit. However, while it may be another department, the Council should not charge a non independent traveller more to travel to college than an independent traveller.
  7. In late July 2020 the Council replied at stage two of its complaints procedure. It said Mr A’s issues did not meet the criteria for its Discretionary Transport Panel review because the Council was already providing transport and Mr A was not disagreeing with the mode of transport. It replied to his complaints:
    • In relation to his complaint that the Council had not discussed transport during the EHCP process, it was not “passing the buck when it asked Mr A to contact the SEND officer. However, it said it should have passed his complaint to the SEND team and included its explanation within its response. It apologised for this oversight, and for any additional stress this may have caused. The Council said it had asked the SEND manager to contact Mr A directly.
    • Regarding the Council’s low income discretion, Mr A could apply to the Council and also apply to the college for a bursary. If they did not get the named benefits, they could apply to the SEN transport team, and a senior manager would consider affordability. The Council could also spread the instalments to make it easier to pay. The Council apologised it had not advised Mr A of this.
    • Regarding Mr A’s complaint that the Council discriminated against those non independent travellers who live further away, it considered its policy ensured a fair and consistent approach. The Council explained it had introduced its policy in 2015 following extensive consultation with stakeholders, including disabled young people and their families It said it had taken the Education Act 1996 and the statutory guidance into account. The financial contributions were based on 20% of the average cost of transport, regardless of the complexities of the transport required for the individual need of the young person. They were calculated based on the number days a young person attends school or college and the distances travelled. The actual cost of transport could be higher depending on the school and the person’s needs, however the contribution was set at 20% to ensure as much consistency as possible.
    • Regarding Mr A’s complaint that its policy discriminated against non-independent travellers, the Council said that those who were independent travellers were not entitled. The Council said it had included information about train cards, Saver Cards and the availability of spare seats on buses for those who were not entitled. It considered its transport policies were in line with the guidance and were not discriminatory, but provided a consistent and fair approach to families.
  8. In late July 2019 the Council confirmed it would amend X’s EHCP. It also replied to his complaint about the annual review delay. It did not uphold his complaint because it said officers had continually tried to ensure it was completed within statutory timescales. However, there were a number of times when Mr A requested delaying the review meeting, mainly to ensure additional professional information was provided.
  9. In August Mr A said he could not afford the contributions but asked the Council to provide transport for X while he pursued his complaint. He said X would not be able to attend school if the Council did not provide transport. He said he could provide a copy of part of his bank statement showing his balance before he was paid. The Council replied asking Mr A to provide a full copy of two months bank statements as the screenshots he provided were not sufficient. The Council says it provided transport despite not having received payment or the evidence it required, in an effort to assist. It gave a deadline in October 2019 for Mr A to provide evidence. However, Mr A was not willing to provide further bank statements because he said it was not reasonable for the Council to requires this level of personal information.

Analysis

  1. The Council has explained the reasoning behind its financial contributions. It consulted stakeholders before bringing in the transport policy in 2015. It appears to have followed due process having consulted before introducing the change. Councils have a wide discretion regarding transport policy for young people over 16. This includes requesting financial contributions. Recent caselaw supports this discretion. In R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502, the court of appeal dismissed the appellant’s challenge to the Council’s policy change to withdraw transport in coaches or minibuses and instead provide a personal transport budget, which may not cover the full cost of transport.
  2. Mr A complained the Council’s policy discriminated against people who lived in rural areas or who lived further away from schools. The Council charges based on 20% of the average actual cost on a sliding scale of mileage zones. This means that some young people with SEND will pay more than others if they travel further. The Council comments that the majority of 16-18 year olds with SEND in its area attend one of four further education colleges in the county. This involves many travelling some distance between towns, and so longer journeys are not exclusive to families living in rural locations. The Council’s view is that its charges are fair and consistent.
  3. As I have explained above the Council has the discretion to set charges for Post 16 transport. I consider it has taken statutory guidance and relevant legislation into account. I have not seen evidence of fault in the Council’s decision making and therefore I cannot criticise its decision. While I note Mr A complains the charges are discriminatory, we cannot make a finding about alleged discrimination. This is an issue only the courts can determine.
  4. Mr A complained that the policy discriminated against non-independent travellers, as there was a charge for them but not for independent travellers who could apply for various schemes which enabled free transport. The Council explains it followed government guidance because it referred parents to transport solutions such as personal transport budgets, train cards, saver cards and spare seats on buses to facilitate attendance. I cannot make a decision whether there is discrimination here, as I have explained that is a matter for the courts. However, I do not see there is fault by the Council here as these are different schemes, some with providers other than the Council.
  5. Mr A complained the Council did not discuss transport in the EHCP process and he could not take it into account when making decisions. In its response to my enquiries the Council said that X’s school placement from September 2019 could not be finalised until August 2019 when he received his GCSE results. There was delay in finalising the EHCP but this does not appear to have been due to a fault by the Council. However, the Council said its SEND team had discussed transport charges with Mr A and corresponded with him about the issue. I can see that transport was discussed from May 2019 if not before, and I do not consider there is evidence of fault here.
  6. Mr A complained the Council did not use its discretion to consider low income or his individual ability to afford the charge. The Council accepted in its stage two response that it should have advised him in its earlier response that it could consider affordability. This was in addition to its low income scheme. It apologised for this. Mr A then went on to provide some information to the Council but the Council decided this was not sufficient evidence and it should not reduce the contribution. I note Mr A says the Council should not ask him to disclose certain information and that it should not consider only one income. However, I do not consider there is fault by the Council in asking Mr A to provide sufficient supporting evidence. I consider the Council’s apology for its delay in advising Mr A is a satisfactory remedy.

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Final decision

  1. I have not found fault causing injustice by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman

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